Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.

I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.

In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.

Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.
My view on this has been influenced by Clark Neily, director of the Institute for Justice’s new Center for Judicial Engagement, who has lately been elaborating on the concept of judicial engagement in appearances at Federalist Society events (I attended one) and in a series of posts at the Volokh Conspiracy.

As Neily describes it, “judicial engagement” is about prodding judges to do their putative job of interpreting and applying the Constitution — which, for Neily, means striking down laws that don’t comport with the Constitution rather than just rubber-stamping legislatures’ decisions in every case under the useless “rational basis” standard of review as courts do most of the time. It is essentially about “calling judges out” when they allow constitutional rights to be violated.

Described that way, judicial engagement appears to be consistent with a libertarian attitude toward government. In the libertarian view, government officials are never to be trusted to do the right thing; instead, the people must be ever vigilant to ensure that government does as little damage to liberty as possible. In the judicial context, this means that we must constantly remind judges of their supposed job and accuse them of abdicating their responsibility when they fail to give legislation the scrutiny it deserves.

The belief in a need to promote judicial engagement is duly cynical inasmuch as it’s premised on the idea that judges can’t be expected to protect liberty in the absence of persistent, intense pressure. The IJ lawyers’ strategy of promoting their pro-liberty legal positions in the court of public opinion, which they believe influences judges, also reflects a “legal realist” attitude appropriate for libertarians, not a deluded vision of judges as unbiased, neutral arbiters.

Judicial engagement is not a panacea, of course. I still doubt that federal courts will meaningfully narrow their expansive reading of the Commerce Clause anytime soon; no 2012 presidential candidate strikes me the sort of person who would appoint judges who would limit federal power. Indeed, there’s every reason to think they would do the opposite. (Ron Paul and Gary Johnson are exceptions, but they are unlikely to win.)

As I have emphasized elsewhere, libertarians’ primary job is education — first of themselves, and then of others. This is essential to building a solid, long-term foundation for liberty. But just as it would be wrong for libertarians to neglect that duty, it would also be wrong to reject a means by which liberty can be increased — and people’s lives can be improved — in the short run. Going to court to fight for people’s liberty accomplishes this, at least sometimes, as one can see from libertarian legal activists’ victories in the Heller and MacDonald gun cases and in the Institute for Justice’s many victories. It also serves an educational purpose, even when the court battle is lost, by calling the public’s attention to the underlying issues; Kelo, for example, educated the public on the evils of the eminent domain power.

I can’t see how a libertarian could disapprove of this kind of judicial engagement — and to the extent that I have done so in the past, I’ve changed my mind.

Nice post. I agree with you. I would add, however, that just because judicial engagement is not unlibertarian, and is one of many possible ways of responding to statism and injustice, does not mean that every legal decision that results in a pro-liberty result, is actually correctly reasoned or compatible with the Constitution, nor that libertarians have any obligation not to point this out. Of course, it might be prudent to not raise a big ruckus in such case, but that’s more of a prudential or case by case matter.

BTW, in their reply to you they write: “Since 1789, the Supreme Court has overturned 150 acts of Congress and roughly 1,200 state and municipal laws.” I thought I had read that the Supremes hadn’t overturned any federal law for like a century or something until fairly recently (I forget which case), so the 150 number seems high. Hmm.

The Supreme Court didn’t strike down a single federal law as exceeding Congress’s powers under the Commerce Clause from 1937 to 1995, when United States v. Lopez finally ended the streak.

It’s interesting that the federal courts have been so much more ready to strike down unconstitutional state and local laws. And why wouldn’t they, since it’s no loss to them if state governments aren’t able to oppress people? They don’t have the bad incentive in this area that they do when considering the constitutionality of federal laws. This suggests that giving federal courts the power to strike down state laws is a good thing — but should be balanced by state power to nullify unconstitutional federal laws. The criminal gangs’ guns should be turned on each other, rather than on us, as much as possible.

Regarding whether libertarians should argue in favor of anti-libertarian constitutional interpretations: It’s so hard to say with certainty what is and isn’t “constitutional” because different people involved in creating and ratifying constitutional provisions may have had different things in mind, and different people living at the time may have had different understandings of what provisions meant — especially vague terms like “privileges or immunities.” I don’t think libertarians should shy away from pointing out the bad motives of some of the Founders (e.g. Hamilton) or unduly revere the Constitution, but I do think that among competing plausible interpretations, libertarians ought to endorse the one that is more favorable for liberty. I don’t think this “bias” is unreasonable or requires intellectual dishonesty, given the background “presumption of liberty” in place at the time of the founding, as Randy Barnett discusses in Restoring the Lost Constitution.

(I think this view that I’m expressing now conflicts somewhat with the view I expressed in a 2010 ASC panel presentation, in which I said that libertarians shouldn’t hesitate to argue that constitutional provisions don’t protect liberty in order to better expose the state’s evil and destroy the myth of a libertarian constitution. As a prudential matter, I’m not sure anymore that this is a good idea; it seems too close to the “worse is better” view of people who want the state to become more oppressive so, they think, the day of libertarian revolution will come sooner. I think you can argue for libertarian interpretations of constitutional provisions and for the illegitimacy of the state at the same time.)

The Supreme Court didn’t strike down a single federal law as exceeding Congress’s powers under the Commerce Clause from 1937 to 1995, when United States v. Lopez finally ended the streak.

Ah, right. I wonder how many of those 150 federal statutes were overturned before, and after, this period. It is sad that more federal laws have not been overturned–by the Supreme Court. And I agree, states ought to also be able to nullify federal laws. I suspect the libertarian “centralists” would not agree with this, but am not sure. What do you think?

Regarding whether libertarians should argue in favor of anti-libertarian constitutional interpretations: It’s so hard to say with certainty what is and isn’t “constitutional” because different people involved in creating and ratifying constitutional provisions may have had different things in mind, and different people living at the time may have had different understandings of what provisions meant — especially vague terms like “privileges or immunities.” I don’t think libertarians should shy away from pointing out the bad motives of some of the Founders (e.g. Hamilton) or unduly revere the Constitution, but I do think that among competing interpretations, libertarians ought to endorse the one that is more favorable for liberty.

Agreed.

I don’t think this “bias” is unreasonable or requires intellectual dishonesty, given the background “presumption of liberty” in place at the time of the founding, as Randy Barnett discusses in Restoring the Lost Constitution.

Right. I just fear this is wishful thinking. The way we interpret such a presumption, it implies that sodomy and whatnot could never be criminalized, and that slavery and (say) voter discrimination by sex or race could not be permitted; it just seems hard to believe that a really libertarian presumption of liberty was understood at the time or can reasonably be read into the original understanding of the Constitution. But, if we can stretch to make that argument, why not?

(I think this view that I’m expressing now conflicts somewhat with the view I expressed in a 2010 ASC panel presentation, in which I said that libertarians shouldn’t hesitate to argue that constitutional provisions don’t protect liberty in order to better expose the state’s evil and destroy the myth of a libertarian constitution. As a prudential matter, I’m not sure anymore that this is a good idea; it seems too close to the “worse is better” view of people who want the state to become more oppressive so, they think, the day of libertarian revolution will come sooner.

Agreed.

I think you can argue for libertarian interpretations of constitutional provisions and for the illegitimacy of the state at the same time.)

Right. There are dangers to doing this, to judicial engagement: waters down radicalism, tends to make you and/or others think the state and the political process “works” or is legitimate, chills speech and makes you hold your tongue in some settings, etc. But it’s just a danger; it’s a trade-off. That’s life.

There are some “libertarian centralists” who favor nullification. Randy Barnett doesn’t think that nullification is constitutional now but has his “federalism amendment,” which you’ve written about, which would provide for something like nullification. David Mayer does think that nullification is constitutional and appropriate now even though he doesn’t agree with the “compact” theory of the Union that Tom Woods relies on in arguing for nullification. Can’t think of anyone else offhand.

I agree that arguing that the Constitution supports liberty could lead to bad “habits of mind,” as Lew Rockwell has put it, and water down some people’s radicalism. But I don’t think it has to. After all, Ron Paul does this, but he’s still a gateway to radical libertarianism. I think we should trust people to be sophisticated enough thinkers to sort this out.

I agree, it doesn’t have to, but not so sure Paul is a good example–with his support for the war in Afghanistan, immigration controls, etc.

It seems to me that so long as you think the feds have no right to use war to stop secession and/or that a secession is a right, then nullification follows–if state A nullifies a federal law then I guess the union can expel it but what else could they do? So does Barnett think there is no right to secede? THAt the feds are constitutionally justified in going to war to stop a state from leaving? If not, then it seems nullification is a consequence as a practical matter or implication.

giving federal courts the power to strike down state laws is a good thing — but should be balanced by state power to nullify unconstitutional federal laws. The criminal gangs’ guns should be turned on each other, rather than on us, as much as possible.

This is an interesting point. I would like to see more on this. When a tension exists between liberty and federalism (or call it what you want: decentralism, states rights, subsidiarity, etc.), it does seem odd that a libertarian should always, in every conceivable case, weigh in on behalf of the oppressions of the lower level of government.